Board must hear land-use request

Appeals panel wrong to dismiss protection program case, judge rules

December 21, 2003|By Liz F. Kay | Liz F. Kay,SUN STAFF

A Howard Circuit judge has ruled that the county's Board of Appeals erroneously dismissed a case that challenged the permitted uses on preserved farmland across Maryland.

The five appointed members of the board will consider the request of Mark, Mike and Steve Mullinix to lease a small part of their 203-acre Dayton farm to a landscaping contractor -- considered a commercial business and therefore prohibited on land in the state's agricultural land protection program.

But the brothers say that farms themselves are commercial and that renting to the contractor makes it affordable for them to continue to raise grain and beef cattle on about 1,600 acres they lease and own across the county.

"What we are doing has not devalued the property, and it subsidized our income in agriculture," said Mark A. Mullinix, who also runs a farm equipment store with his brothers on land that is not protected.

The three men sold an easement for their Dayton farm to the state agricultural land preservation program in 1983 for almost $240,000.

About the same time, they agreed to lease about 1.5 acres to a landscaper to repair and store equipment and supplies.

According to the state, anything other than farm use on land protected by agricultural easements violates the rules of the contract.

Howard County, however, allows such uses on agricultural land if property owners apply for permission.

Mullinix attorney Malcolm B. Kane said that landscaping is just as much an agricultural endeavor as selling cattle, corn or cauliflower.

"These are the kinds of comparisons that run through my mind when they say this is commercial," he said.

But Assistant Attorney General Craig A. Nielsen, counsel for the Maryland Department of Agriculture, said that using local zoning as a guide would result in the application of different standards throughout the state.

"Just because local zoning allows a use, [it] doesn't trump the state program," he said.

County planning officials learned about the landscaping operation in 1999. Representatives from the state program said the brothers could not continue. Howard County took them to District Court, where a judge ruled that they could still apply for permission from the county.

But when the Board of Appeals met last year, the members chose to put the case on its unscheduled docket until the state had given the brothers an answer.

When Kane requested a hearing, the board issued an order dismissing the case without listening to any testimony.

Kane appealed the decision to the Circuit Court, asking whether the board can deny hearing a case because the state did not allow the brothers to apply for permission.

In his decision, Judge Raymond J. Kane Jr. wrote that the board did not have the authority to dismiss a case it had begun to hear; it could only grant or deny permission.

"Unless you hear the evidence, there's not a thing that the court on appeal can do," attorney Kane said.

Judge Kane also put on hold a lawsuit between the state Agricultural Land Preservation Foundation and the Mullinix brothers.

Nielsen said he expects that state program representatives will testify before the Board of Appeals.

"We're hoping to participate and press the issue that this is a violation with the county appeals board," he said.

Since the program began in 1977, almost 399,000 acres have been placed in protected districts, restricting them to agricultural uses for five years. About 240,000 acres have been permanently preserved, said James A. Conrad, the foundation's executive director.

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